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Kansas Senate Bill SB74

Kansas 2023-2024 Regular Session

Kansas Senate Bill SB74 Compare Versions

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11 Session of 2023
22 SENATE BILL No. 74
33 By Committee on Judiciary
44 1-20
55 AN ACT concerning the code of civil procedure; relating to litigation
66 funding by third parties; providing for joint liability for costs and
77 sanctions; requiring certain discovery disclosures; payment of certain
88 costs for nonparty subpoenas in third-party funded action; amending
99 K.S.A. 2022 Supp. 60-226 and 60-245 and repealing the existing
1010 sections.
1111 Be it enacted by the Legislature of the State of Kansas:
1212 New Section 1. (a) Any person, other than an attorney permitted to
1313 charge a contingent fee representing a party, that has a right to receive
1414 compensation that is contingent on and sourced from any proceeds of that
1515 civil action, by settlement, judgment or otherwise, is jointly liable for costs
1616 assessed pursuant to K.S.A. 60-2002, and amendments thereto, or any
1717 monetary sanction imposed pursuant to K.S.A. 60-211(c), 60-226(f)(3) or
1818 60-237(d)(3), and amendments thereto, on the party with whom such
1919 person has such an agreement.
2020 (b) This section shall be a part of and supplemental to the Kansas
2121 code of civil procedure.
2222 Sec. 2. K.S.A. 2022 Supp. 60-226 is hereby amended to read as
2323 follows: 60-226. (a) Discovery methods. Parties may obtain discovery by
2424 one or more of the following methods: Depositions on oral examination or
2525 written questions; written interrogatories; production of documents or
2626 things or permission to enter onto land or other property under K.S.A. 60-
2727 234, K.S.A. 60-245(a)(1)(A)(iii) or K.S.A. 60-245a, and amendments
2828 thereto; physical and mental examinations; and requests for admission.
2929 (b) Discovery scope and limits.
3030 (1) Scope in general. Unless otherwise limited by court order, the
3131 scope of discovery is as follows: Parties may obtain discovery regarding
3232 any nonprivileged matter that is relevant to any party's claim or defense
3333 and proportional to the needs of the case, considering the importance of
3434 the issues at stake in the action, the amount in controversy, the parties'
3535 relative access to relevant information, the parties' resources, the
3636 importance of the discovery in resolving the issues and whether the burden
3737 or expense of the proposed discovery outweighs its likely benefit.
3838 Information within this scope of discovery need not be admissible in
3939 evidence to be discoverable.
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7676 (2) Limitations on frequency and extent. (A) On motion, or on its
7777 own, the court may limit the frequency or extent of discovery methods
7878 otherwise allowed by the rules of civil procedure and must do so if it
7979 determines that:
8080 (i) The discovery sought is unreasonably cumulative or duplicative,
8181 or can be obtained from some other source that is more convenient, less
8282 burdensome or less expensive;
8383 (ii) the party seeking discovery has had ample opportunity to obtain
8484 the information by discovery in the action; or
8585 (iii) the proposed discovery is outside the scope permitted by
8686 subsection (b)(1).
8787 (B) A party need not provide discovery of electronically stored
8888 information from sources that the party identifies as not reasonably
8989 accessible because of undue burden or cost. On motion to compel
9090 discovery or for a protective order, the party from whom discovery is
9191 sought must show that the information is not reasonably accessible
9292 because of undue burden or cost. If that showing is made, the court may
9393 nonetheless order discovery from such sources if the requesting party
9494 shows good cause, considering the limitations of subsection (b)(2)(A). The
9595 court may specify conditions for the discovery.
9696 (3) Agreements.
9797 (A) Insurance agreements. A party may obtain discovery of the
9898 existence and contents of any insurance agreement under which an
9999 insurance business may be liable to satisfy part or all of a possible
100100 judgment in the action or to indemnify or reimburse for payments made to
101101 satisfy the judgment. Information concerning the insurance agreement is
102102 not by reason of disclosure admissible in evidence at trial. For purposes of
103103 this paragraph, an application for insurance is not a part of an insurance
104104 agreement.
105105 (B) Third-party agreements. Except as otherwise stipulated or
106106 ordered by the court, a party shall, without awaiting a discovery request,
107107 provide to the other parties any agreement under which any person, other
108108 than an attorney permitted to charge a contingent fee representing a party,
109109 has a right to receive compensation that is contingent on and sourced from
110110 any proceeds of the civil action, by settlement, judgment or otherwise.
111111 (4) Trial preparation; materials.
112112 (A) Documents and tangible things. Ordinarily, a party may not
113113 discover documents and tangible things that are prepared in anticipation of
114114 litigation or for trial by or for another party or its representative, including
115115 the other party's attorney, consultant, surety, indemnitor, insurer or agent.
116116 But, subject to subsection (b)(5), those materials may be discovered if:
117117 (i) They are otherwise discoverable under paragraph (1); and
118118 (ii) the party shows that it has substantial need for the materials to
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162162 prepare its case and cannot, without undue hardship, obtain their
163163 substantial equivalent by other means.
164164 (B) Protection against disclosure. If the court orders discovery of
165165 those materials, it must protect against disclosure of the mental
166166 impressions, conclusions, opinions or legal theories of a party's attorney or
167167 other representative concerning the litigation.
168168 (C) Previous statement. Any party or other person may, on request
169169 and without the required showing, obtain the person's own previous
170170 statement about the action or its subject matter. If the request is refused,
171171 the person may move for a court order, and K.S.A. 60-237, and
172172 amendments thereto, applies to the award of expenses. A previous
173173 statement is either:
174174 (i) A written statement that the person has signed or otherwise
175175 adopted or approved; or
176176 (ii) a contemporaneous stenographic, mechanical, electrical or other
177177 recording, or a transcription of it, that recites substantially verbatim the
178178 person's oral statement.
179179 (5) Trial preparation; experts.
180180 (A) Deposition of an expert who may testify. A party may depose any
181181 person who has been identified as an expert whose opinions may be
182182 presented at trial. If a disclosure is required under subsection (b)(6), the
183183 deposition may be conducted only after the disclosure is provided.
184184 (B) Trial-preparation protection for draft disclosures. Subsections (b)
185185 (4)(A) and (b)(4)(B) protect drafts of any disclosure required under
186186 subsection (b)(6), and drafts of a disclosure by an expert witness provided
187187 in lieu of the disclosure required by subsection (b)(6), regardless of the
188188 form in which the draft is recorded.
189189 (C) Trial-preparation protection for communications between a
190190 party's attorney and expert witnesses. Subsections (b)(4)(A) and (b)(4)(B)
191191 protect communications between the party's attorney and any witness
192192 about whom disclosure is required under subsection (b)(6), regardless of
193193 the form of the communications, except to the extent that the
194194 communications:
195195 (i) Relate to compensation for the expert's study or testimony;
196196 (ii) identify facts or data that the party's attorney provided and that
197197 the expert considered in forming the opinions to be expressed; or
198198 (iii) identify assumptions that the party's attorney provided and that
199199 the expert relied on in forming the opinions to be expressed.
200200 (D) Expert employed only for trial preparation. Ordinarily, a party
201201 may not, by interrogatories or deposition, discover facts known or
202202 opinions held by an expert who has been retained or specially employed
203203 by another party in anticipation of litigation or to prepare for trial and who
204204 is not expected to be called as a witness at trial. But a party may do so
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248248 only:
249249 (i) As provided in K.S.A. 60-235(b), and amendments thereto; or
250250 (ii) on showing exceptional circumstances under which it is
251251 impracticable for the party to obtain facts or opinions on the same subject
252252 by other means.
253253 (E) Payment. Unless manifest injustice would result, the court must
254254 require that the party seeking discovery:
255255 (i) Pay the expert a reasonable fee for time spent in responding to
256256 discovery under subsection (b)(5)(A) or (b)(5)(D); and
257257 (ii) for discovery under subsection (b)(5)(D), also pay the other party
258258 a fair portion of the fees and expenses it reasonably incurred in obtaining
259259 the expert's facts and opinions.
260260 (6) Disclosure of expert testimony.
261261 (A) Required disclosures. A party must disclose to other parties the
262262 identity of any witness it may use at trial to present expert testimony. The
263263 disclosure must state:
264264 (i) The subject matter on which the expert is expected to testify; and
265265 (ii) the substance of the facts and opinions to which the expert is
266266 expected to testify.
267267 (B) Witness who is retained or specially employed. Unless otherwise
268268 stipulated or ordered by the court, if the witness is retained or specially
269269 employed to provide expert testimony in the case, or is one whose duties
270270 as the party's employee regularly involve giving expert testimony, the
271271 disclosure under subsection (b)(6)(A) must also state a summary of the
272272 grounds for each opinion.
273273 (C) Time to disclose expert testimony. A party must make these
274274 disclosures at the times and in the sequence that the court orders. Absent a
275275 stipulation or court order, the disclosures must be made:
276276 (i) At least 90 days before the date set for trial or for the case to be
277277 ready for trial; or
278278 (ii) if the evidence is intended solely to contradict or rebut evidence
279279 on the same subject matter identified by another party under subsection (b)
280280 (6)(B), within 30 days after the other party's disclosure.
281281 (D) Supplementing the disclosure. The parties must supplement these
282282 disclosures when required under subsection (e).
283283 (E) Form of disclosures. Unless otherwise ordered by the court, all
284284 disclosures under this subsection must be:
285285 (i) In writing, signed and served; and
286286 (ii) filed with the court in accordance with K.S.A. 60-205(d), and
287287 amendments thereto.
288288 (7) Claiming privilege or protecting trial preparation materials.
289289 (A) Information withheld. When a party withholds information
290290 otherwise discoverable by claiming that the information is privileged or
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334334 subject to protection as trial preparation material, the party must:
335335 (i) Expressly make the claim; and
336336 (ii) describe the nature of the documents, communications or things
337337 not produced or disclosed, and do so in a manner that, without revealing
338338 information itself privileged or protected, will enable other parties to
339339 assess the claim.
340340 (B) Information produced. If information produced in discovery is
341341 subject to a claim of privilege or of protection as trial preparation material,
342342 the party making the claim may notify any party that received the
343343 information of the claim and the basis for it. After being notified, a party
344344 must promptly return, sequester or destroy the specified information and
345345 any copies it has; must not use or disclose the information until the claim
346346 is resolved; must take reasonable steps to retrieve the information if the
347347 party disclosed it before being notified; and may promptly present the
348348 information to the court under seal for a determination of the claim. The
349349 producing party must preserve the information until the claim is resolved.
350350 (c) Protective orders.
351351 (1) In general. A party or any person from whom discovery is sought
352352 may move for a protective order in the court where the action is pending,
353353 as an alternative on matters relating to a deposition, in the district court
354354 where the deposition will be taken. The motion must include a certification
355355 that the movant has in good faith conferred or attempted to confer with
356356 other affected parties in an effort to resolve the dispute without court
357357 action and must describe the steps taken by all attorneys or unrepresented
358358 parties to resolve the issues in dispute. The court may, for good cause,
359359 issue an order to protect a party or person from annoyance,
360360 embarrassment, oppression or undue burden or expense, including one or
361361 more of the following:
362362 (A) Forbidding the disclosure or discovery;
363363 (B) specifying terms, including time and place or the allocation of
364364 expenses, for the disclosure or discovery;
365365 (C) prescribing a discovery method other than the one selected by the
366366 party seeking discovery;
367367 (D) forbidding inquiry into certain matters, or limiting the scope of
368368 disclosure or discovery to certain matters;
369369 (E) designating the persons who may be present while the discovery
370370 is conducted;
371371 (F) requiring that a deposition be sealed and opened only on court
372372 order;
373373 (G) requiring that a trade secret or other confidential research,
374374 development or commercial information not be revealed or be revealed
375375 only in a specified way; and
376376 (H) requiring that the parties simultaneously file specified documents
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420420 or information in sealed envelopes, to be opened as the court orders.
421421 (2) Ordering discovery. If a motion for a protective order is wholly or
422422 partly denied the court may, on just terms, order that any party or person
423423 provide or permit discovery.
424424 (3) Awarding expenses. The provisions of K.S.A. 60-237, and
425425 amendments thereto, apply to the award of expenses.
426426 (d) Sequence of discovery. Unless the parties stipulate or the court
427427 orders otherwise for the parties' and witnesses' convenience and in the
428428 interests of justice:
429429 (1) Methods of discovery may be used in any sequence; and
430430 (2) discovery by one party does not require any other party to delay
431431 its discovery.
432432 (e) Supplementing disclosures and responses.
433433 (1) In general. A party who has made a disclosure under subsection
434434 (b)(6), or who has responded to an interrogatory, request for production or
435435 request for admission, must supplement or correct its disclosure or
436436 response:
437437 (A) In a timely manner if the party learns that in some material
438438 respect the disclosure or response is incomplete or incorrect, and if the
439439 additional or corrective information has not otherwise been made known
440440 to the other parties during the discovery process or in writing; or
441441 (B) as ordered by the court.
442442 (2) Expert witness. For an expert to whom the disclosure requirement
443443 in subsection (b)(6) applies, the party's duty to supplement extends both to
444444 information included in the disclosure and to information given during the
445445 expert's deposition. Any additions or changes to this information must be
446446 disclosed at least 30 days before trial, unless the court orders otherwise.
447447 (f) Signing disclosures and discovery requests, responses and
448448 objections.
449449 (1) Signature required; effect of signature. Every disclosure under
450450 subsection (b)(6) and every discovery request, response or objection must
451451 be signed by at least one attorney of record in the attorney's own name, or
452452 by the party personally, if unrepresented, and must state the signor's
453453 address, e-mail address and telephone number. By signing, an attorney or
454454 party certifies that to the best of the person's knowledge, information and
455455 belief formed after a reasonable inquiry:
456456 (A) With respect to a disclosure, it is complete and correct as of the
457457 time it is made;
458458 (B) with respect to a discovery request, response or objection, it is:
459459 (i) Consistent with the rules of civil procedure and warranted by
460460 existing law or by a nonfrivolous argument for extending, modifying or
461461 reversing existing law or for establishing new law;
462462 (ii) not interposed for any improper purpose, such as to harass, cause
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506506 unnecessary delay or needlessly increase the cost of litigation; and
507507 (iii) neither unreasonable nor unduly burdensome or expensive
508508 considering the needs of the case, prior discovery in the case, the amount
509509 in controversy and the importance of the issues at stake in the action.
510510 (2) Failure to sign. Other parties have no duty to act on an unsigned
511511 disclosure, request, response or objection until it is signed, and the court
512512 must strike it unless a signature is promptly supplied after the omission is
513513 called to the attorney's or party's attention.
514514 (3) Sanction for improper certification. If a certification violates this
515515 section without substantial justification, the court, on motion, or on its
516516 own, must impose an appropriate sanction on the signer, the party on
517517 whose behalf the signer was acting, or both. The sanction may include an
518518 order to pay the reasonable expenses, including attorney's fees, caused by
519519 the violation.
520520 Sec. 3. K.S.A. 2022 Supp. 60-245 is hereby amended to read as
521521 follows: 60-245. (a) In general.
522522 (1) Form and contents.
523523 (A) Requirements; in general. Every subpoena must:
524524 (i) State the court from which it is issued;
525525 (ii) state the title of the action, the court in which it is pending and the
526526 file number of the action;
527527 (iii) command each person to whom it is directed to do the following
528528 at a specified time and place: Attend and testify; produce designated
529529 documents, electronically stored information or tangible things in that
530530 person's possession, custody or control; or permit the inspection of
531531 premises; and
532532 (iv) set out the text of subsections (c) and (d).
533533 (B) Command to attend a deposition; notice of the recording method.
534534 A subpoena commanding attendance at a deposition must state the method
535535 for recording the testimony.
536536 (C) Combining or separating a command to produce or to permit
537537 inspection; specifying the form for electronically stored information. A
538538 command to produce documents, electronically stored information or
539539 tangible things or to permit the inspection of premises may be included in
540540 a subpoena commanding attendance at a deposition, hearing or trial, or
541541 may be set out in a separate subpoena. A subpoena may specify the form or
542542 forms in which electronically stored information is to be produced.
543543 Subpoena and production of records of a business that is not a party may
544544 be in accordance with K.S.A. 60-245a, and amendments thereto.
545545 (D) Command to produce; included obligations. A command in a
546546 subpoena to produce documents, electronically stored information or
547547 tangible things requires the responding party to permit inspection, copying,
548548 testing or sampling of the materials.
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592592 (2) Issued from which court. A subpoena must issue as follows:
593593 (A) For attendance at a hearing or trial, from the court where the
594594 hearing or trial is to be held;
595595 (B) for attendance at a deposition, from the court in which where the
596596 action is pending or from the officer before whom the deposition is to be
597597 taken, or, if the deposition is to be taken outside this state, from an officer
598598 authorized by the law of the other state to issue the subpoena; and
599599 (C) for production or inspection, if separate from a subpoena
600600 commanding a person's attendance, from the court in which where the
601601 action is pending, or, if the production, inspection, copying, testing or
602602 sampling is to be made outside this state, from an officer authorized by the
603603 law of the other state to issue the subpoena.
604604 (3) Issued by whom. Every subpoena issued by the court must be
605605 issued by the clerk under the seal of the court or by a judge. The clerk
606606 must issue a subpoena, signed but otherwise in blank, to a party who
607607 requests it. The blank subpoena must bear the seal of the court and the
608608 clerk's signature. The party to whom a blank subpoena is issued must fill it
609609 in before service.
610610 (b) Service. Service of a subpoena may be made anywhere within this
611611 state, must be made in accordance with K.S.A. 60-303, and amendments
612612 thereto, and must, if the subpoena requires a person's attendance, be
613613 accompanied by the fees for one day's attendance and the mileage allowed
614614 by law. If, independently of a deposition, the subpoena commands the
615615 production of documents, electronically stored information or tangible
616616 things or the inspection of premises before trial, then before it is served, a
617617 notice must be served on each party in accordance with subsection (b) of
618618 K.S.A. 60-205(b), and amendments thereto.
619619 (c) Protecting a person subject to a subpoena.
620620 (1) Avoiding undue burden or expense; sanctions. A party or attorney
621621 responsible for issuing and serving a subpoena must take reasonable steps
622622 to avoid imposing undue burden or expense on a person subject to the
623623 subpoena. The issuing court must enforce this duty and impose an
624624 appropriate sanction, which may include lost earnings and reasonable
625625 attorney's fees, on a party or attorney who fails to comply.
626626 (2) Command to produce materials or permit inspection.
627627 (A) Appearance not required. A person commanded to produce
628628 designated documents, electronically stored information or tangible things,
629629 or to permit the inspection of premises, need not appear in person at the
630630 place of production or inspection unless also commanded to appear for a
631631 deposition, hearing or trial.
632632 (B) Objections. A person commanded to produce designated materials
633633 or to permit inspection may serve on the party or attorney designated in the
634634 subpoena a written objection to inspecting, copying, testing or sampling
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678678 any or all of the designated materials or to inspecting the premises, or to
679679 producing electronically stored information in the form or forms
680680 requested. The objection must be served before the earlier of the time
681681 specified for compliance or 14 days after the subpoena is served. If an
682682 objection is made, the following rules apply:
683683 (i) At any time, on notice to the commanded person, the serving party
684684 may move the issuing court for an order compelling production or
685685 inspection; and
686686 (ii) these acts may be required only as directed in the order, and the
687687 order must protect a person who is neither a party nor a party's officer
688688 from significant expense resulting from compliance.
689689 (3) Quashing or modifying a subpoena.
690690 (A) When required. On timely motion, the issuing court must quash
691691 or modify a subpoena that:
692692 (i) Fails to allow a reasonable time to comply;
693693 (ii) requires a resident of this state who is neither a party nor a party's
694694 officer to travel more than 100 miles from where that person resides, is
695695 employed or regularly transacts business in person or requires a
696696 nonresident who is neither a party nor a party's officer to travel more than
697697 100 miles from where the nonresident was served with the subpoena, is
698698 employed or regularly transacts business in person, except that, subject to
699699 paragraph (3)(B)(iii), the person may be commanded to travel to the place
700700 of trial;
701701 (iii) requires disclosure of privileged or other protected matter, if no
702702 exception or waiver applies; or
703703 (iv) subjects a person to undue burden.
704704 (B) When permitted. To protect a person subject to or affected by a
705705 subpoena, the issuing court may, on motion, quash or modify the subpoena
706706 if it requires:
707707 (i) Disclosing a trade secret or other confidential research
708708 development or commercial information;
709709 (ii) disclosing an unretained expert's opinion or information that does
710710 not describe specific occurrences in dispute and results from the expert's
711711 study that was not requested by a party; or
712712 (iii) a person who is neither a party nor a party's officer to incur
713713 substantial expense to travel more than 100 miles to attend trial.
714714 (C) Specifying conditions as an alternative. In the circumstances
715715 described in subsection (c)(3)(B), the court may, instead of quashing or
716716 modifying a subpoena, order appearance or production under specified
717717 conditions as the serving party:
718718 (i) Shows a substantial need for the testimony or material that cannot
719719 be otherwise met without undue hardship; and
720720 (ii) ensures that the subpoenaed person will be reasonably
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764764 compensated.
765765 (4) Nonparty subpoenas in third-party funded action. A party that has
766766 entered into an agreement subject to K.S.A. 60-226(b)(3)(B), and
767767 amendments thereto, shall reasonably compensate a person who is neither
768768 a party nor a party's officer the cost of responding to a subpoena to
769769 produce designated documents, electronically stored information or
770770 tangible things, to permit the inspection of premises or to appear at a
771771 deposition. Reasonable costs incurred include, but are not limited to:
772772 (A) Costs incurred in identifying, collecting, reviewing and producing
773773 the designated materials;
774774 (B) the measurable cost of disruption to the nonparty's normal
775775 business operations;
776776 (C) costs of travel to appear at a deposition; and
777777 (D) fees charged by outside counsel directly related to compliance
778778 with the subpoena.
779779 (5) Person in prison. A person confined in prison may be required to
780780 appear for examination by deposition only in the county where the person
781781 is imprisoned.
782782 (d) Duties in responding to a subpoena.
783783 (1) Producing documents or electronically stored information. These
784784 procedures apply to producing documents or electronically stored
785785 information:
786786 (A) Documents. A person responding to a subpoena to produce
787787 documents must produce them as they are kept in the ordinary course of
788788 business or must organize and label them to correspond to the categories in
789789 the demand.
790790 (B) Form for producing electronically stored information not
791791 specified. If a subpoena does not specify a form for producing
792792 electronically stored information, a person responding to a subpoena must
793793 produce it in a form or forms in which it is ordinarily maintained or in a
794794 reasonably usable form or forms.
795795 (C) Electronically stored information produced in only one form. The
796796 person responding need not produce the same electronically stored
797797 information in more than one form.
798798 (D) Inaccessible electronically stored information. The person
799799 responding need not provide discovery of electronically stored information
800800 from sources that the person identifies as not reasonably accessible
801801 because of undue burden or cost. On motion to compel discovery or for a
802802 protective order, the person responding must show that the information is
803803 not reasonably accessible because of undue burden or cost. If that showing
804804 is made, the court may nonetheless order discovery from such sources if
805805 the requesting party shows good cause, considering the limitations of
806806 subsection (b)(2)(A) of K.S.A. 60-226(b)(2)(A), and amendments thereto.
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850850 The court may specify conditions for the discovery.
851851 (2) Claiming privilege or protection.
852852 (A) Information withheld. A person withholding subpoenaed
853853 information under a claim that it is privileged or subject to protection as
854854 trial-preparation material must:
855855 (i) Expressly make the claim; and
856856 (ii) describe the nature of the withheld documents, communications
857857 or things in a manner that, without revealing information itself privileged
858858 or protected, will enable the parties to assess the claim.
859859 (B) Information produced. If information produced in response to a
860860 subpoena is subject to a claim of privilege or of protection as trial-
861861 preparation material, the person making the claim may notify any party
862862 that received the information of the claim and the basis for it. After being
863863 notified, a party must promptly return, sequester or destroy the specified
864864 information and any copies it has; must not use or disclose the information
865865 until the claim is resolved; must take reasonable steps to retrieve the
866866 information if the party disclosed it before being notified; and may
867867 promptly present the information to the court under seal for a
868868 determination of the claim. The person who produced the information
869869 must preserve the information until the claim is resolved.
870870 (e) Contempt. The issuing court may hold in contempt a person who,
871871 having been served, fails without adequate excuse to obey the subpoena.
872872 Punishment for contempt should be in accordance with K.S.A. 20-1204,
873873 and amendments thereto. A nonparty's failure to obey must be excused if
874874 the subpoena purports to require the nonparty to attend or produce at a
875875 place outside the limits of subsection (c)(3)(A)(ii).
876876 Sec. 4. K.S.A. 2022 Supp. 60-226 and 60-245 are hereby repealed.
877877 Sec. 5. This act shall take effect and be in force from and after its
878878 publication in the statute book.
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